Employers Reinsurance Corporation v. Holland

347 S.W.2d 605, 162 Tex. 394, 4 Tex. Sup. Ct. J. 487, 1961 Tex. LEXIS 590

• Court: Texas Supreme Court
• Decided: May 24, 1961
• Docket: A-7837
• Status: Published

Opinions

MR. CHIEF JUSTICE CALVERT

delivered the opinion of the Court.

Respondents' motion for rehearing is granted. The opinions delivered on February 15, 1961, are withdrawn, and the following is substituted as the opinion of the court.

This is an original proceeding in this court in which Employers Reinsurance Corporation, relator, seeks a writ of mandamus to compel Honorable William M. Holland, District Judge of the 127th Judicial District, to enter judgment on the verdict of the jury in Cause No. 517,986, Byrd Baggett, Jr. vs. Employers Reinsurance Corporation, and to set aside his order therein of April 11, 1960, declaring a mistrial.

The case in which the order of mistrial was entered is a workmen’s compensation case. The parties stipulated that the average weekly wage of the plaintiff, Baggett, before and at the time of his injury was $100.00. Special issue No. 2 inquired whether the injury sustained by the plaintiff was a producing cause of any partial incapacity of the plaintiff to labor. “Partial incapacity” was defined in the charge as follows:

“It shall mean where an employee by reason of injuries sustained in the course of his employment is only able to perform part of the usual task of a workman, but nevertheless, is able to procure and retain employment reasonably suitable to his physical condition and ability to work or is only able to perform labor of a less remunerative class than he performed prior to his injuries, whereby he suffers a depression or reduction in his earning capacity.”

The jury answered that it was. The jury thus found that the plaintiff had suffered “a depression or reduction of his earning capacity.”

In answer to special issue No. 6 the jury found that the average weekly wage earning capacity during the existence of his partial incapacity was $100.00, exactly the same as his average weekly wage before and at the time of his injury. It follows that if the plaintiff’s average weekly wage of $100.00 before and at the time of injury represents, in law, his earning capacity at such times, the jury’s answer to special issue No. 6, considered with the stipulation, is in fatal conflict with its answer to special issue No. 2, and the order of mistrial was a proper order.

Section 11 of Article 8306, Vernon’s Annotated Texas Statutes, reads in part as follows:

“Sec. 11. While incapacity for work resulting from the injury is partial, the association shall pay to the injured employee a weekly compensation equal to sixty per cent (60%) of the difference between his average weekly wages before the injury and his average weekly wage earning capacity during the existence of such partial incapacity * * (Emphasis added).

It is quite clear from the foregoing language of the Workmen’s Compensation Act that partial incapacity cannot exist unless the average weekly wage earning capacity after injury is less than average weekly wages before injury.

We have long held that the purpose of the Act is to compensate an injured employee, not for the loss of earnings or for the injury itself, but for loss of earning capacity. Maryland Cas. Co. v. Stevens, Tex. Civ. App., 55 S.W. 2d 149, 153, writ refused; Maryland Cas. Co. v. Drummond, Tex. Civ. App., 114 S.W. 2d 356, 360, writ refused; Texas Emp. Ins. Ass’n. v. Clack, 134 Tex. 151, 132 S.W. 2d 399, 401. To ascertain whether there has been a loss of earning capacity, average weekly wage earning capacity during disability must, under the provisions of Section 11 of Article 8306, supra, be subtracted from average weekly wages before injury. If the remainder is to represent extent of loss of earning capacity, necessarily average weekly wages before injury must represent, in law, earning capacity before injury. That the Legislature intended that it do so is evident from a careful analysis of the provisions of Section 1 of Article 8309, V.A.T.S., defining “average weekly wages.”

Amendment of Section 11 by Acts 1957, 55th Leg., p. 1186, ch. 397, does not require a different holding. There is nothing in the amendment which either states or reasonably infers that “average weekly wages” of an injured employee does not measure and represent his earning capacity before injury. It simply directs that compensation under the Section shall “not be computed on a basis of a percentage of disability,” a method of computation theretofore approved by this court in Associated Ind. Corp. v. McGrew, 138 Tex. 583, 160 S.W. 2d 912, and Traders & General Ins. Co. v. Robinson, Tex. Civ. App., 222 S.W. 2d 266, writ refused.

We conclude that the jury’s answers to special issues Nos. 2 and 6 cannot be reconciled under the test applied in Bradford vs. Arhelger, 161 Texas 427, 340 S.W. 2d 772, and the order of mistrial was proper. Writ of mandamus is denied.